98354: His country forbids plural marriage and he wants to marry a second wife with the permission of her brother but not her father

I live in a country where polygamy is prohibited. Customary marriage is not allowed either; so it cannot be registered one day! The wali is not accepting the idea of letting one of his daughters get married secretly. What is the solution for this, knowing that I am married but liked her, and she agreed to marry in such a way? Her younger brother who is 25 years old also agreed, but he requests that we keep this marriage secret.

Praise be to Allaah.

Firstly:

We do not know how some of those to whom Allaah has granted
authority over the Muslims dare to oppose Allaah and His religion. They are
not content only to forego ruling in accordance with that which Allaah has
revealed, but they also oppose sharee’ah, go against its rulings and mock
it. An example of that is their putting restrictions on that which is halaal
and banning it, and spreading haraam and approving of it. If one commits sin
and that is limited to himself, the matter is not as serious as one who
propagates sin by force of law, so that the one who does it is rewarded and
the one who does not do it is punished. We ask Allaah to set the affairs of
the Muslims straight, both rulers and subjects. If they were to think for a
few moments of how their destiny is a narrow grave in which they will not
have their servants, followers, ministers, wealth, crowns, food and drink
with them, they would understand this matter and realize that it is serious
and there is no room for joking. If they were to think of the meeting with
their Lord, they would re-examine the path they have chosen to follow. If
Allaah saw anything good in them He would have guided them.

Secondly:

You should realize that it is not permissible to marry
without the woman’s wali (guardian) being involved. If her father is present
then her brother has no right to arrange her marriage. The father loses the
right of guardianship if it is proven that he is preventing his daughter
from marrying anyone, for no legitimate shar’i reason or for no reason that
is acceptable according to sharee’ah. If he prevents her from marrying in a
case like that which you describe, he has done well, and it is in accordance
with sharee’ah and sound reason. How can you want to marry his daughter with
no documentation that is recognized by the state?! Do you know of the evil
consequences that can result from that?

Documentation of marriage contracts – and other kinds of
contracts – is not a bid’ah or innovation in Islam, rather it serves the
general purposes that are in accordance with sharee’ah.

General purposes (al-masaalih al-mursalah) are those which
Islam did not refer to in specific terms, so they are not enjoined or
ignored. Rulings on these general purposes are to be based on the general
principles of sharee’ah.

This applies to cases where the mujtahid thinks that this
action will bring a certain benefit and there is nothing in sharee’ah to
forbid it.

Majmoo’ al-Fataawa (11/342,
343).

There are several interests to be served by documenting
marriage, such as the following:

1 – Preserving the wife’s rights, such as proof of the
delayed portion of the mahr, recording the conditions stipulated by her, and
allowing her to take her share of inheritance from her husband and
children.

2 – Proof of her children’s parentage from her and their
father.

3 – Prevention of another marriage contract being done for
her when she is married to another husband.

4 – Preserving the husband’s rights, as the mahr that the
wife received is recorded.

5 – Preventing the husband from marrying more than four
women.

And there are many other interests, which sharee’ah would not
overlook, rather it would stipulate them as conditions in marriage so as to
preserve people’s rights and ward off evil.

In al-Mawsoo’ah al-Fiqhiyyah (6/170) it says:

Allaah has prescribed recording and witnessing so as to
protect people’s rights. He says (interpretation of the meaning):

“O you who believe! When you contract a debt for a fixed
period, write it down”

“And get two witnesses out of your own men.”

“But take witnesses whenever you make a commercial
contract”

[al-Baqarah 2:282]

And Islam enjoins documenting some commitments because of
their seriousness, such as marriage. End quote.

The scholars of the Standing Committee were asked:

Is it necessary in marriage to have a person who prompts the
woman’s wali to give the proposal and prompts the husband to accept, or is
the marriage valid without this person if the marriage fulfils all the
conditions and necessary aspects?

They replied:

If the matter is as described in the question, whereby you
propose and the father accepts, and there are witnesses, and the girl named
in the marriage contract agrees, then the marriage is valid, even if another
person does not do the marriage contract between you, because that is not a
condition of the marriage being valid or complete. Rather the government
requires people to do the marriage contract before one whom it has
authorized to do that and record it, so as to avoid chaos and prevent people
from toying with marriage, and so as to preserve lineages and protect
people’s honour and rights, and so as to avoid denial of prior agreements in
the event of disputes. Obeying the authorities in such good matters is
obligatory, because that is helping them to run people's affairs properly
and serve their best interests.

Based on this, the fact that the father of this woman has
refused to let you marry her because of the ban on plural marriage is
acceptable, and what he has done is not going against sharee’ah, and it is
not permissible for you to marry her without her father’s permission. Her
brother’s acting as her wali is invalid if her father is present, and any
marriage contract that is done with her is invalid and unacceptable.

Thirdly:

As for the ‘urfi marriage, it takes two forms:

1-
Where a woman gets married in
secret, without the approval of her wali. This is what people think of when
this word is used. If that is the case, then it is a haraam contract which
is not valid, because the approval of the wali is one of the conditions of a
marriage contract being valid.

2-
Marriage with the approval of
the wali, but without announcing or publicizing the matter, or documenting
it in the courts. Although this is a valid marriage in that it has met the
conditions, it leads to many negative consequences, and those scholar who
have examined this issue have ruled that it is definitely not allowed,
especially because of the lack of documentation.

In your case which you have asked about here, the woman’s
father does not approve of the marriage, so it is not allowed for two
reasons:

(i)
The wali has not given his
approval

(ii)
It has not been documented.

In the answer to question no.
2127 you will find an
important summary of the conditions of marriage and the conditions of the
wali.

In the answer to question no.
7989 you will find further
important information on the importance of the wali as a condition of the
marriage being valid.

In the answer to questions no.
45513 and
45663 you will find a
discussion on the ruling on ‘urfi marriage.